DEFINITION OF HINDU LAW

Akriti Sinha

2nd Year BA LLB (Hons.)

Introduction
As we all know that a major population of the world lives in India and India being a secular
country have variety of religion such as Hindu, Muslim, Sikh, Christian and Parsi live together.
India is governed primarily by two laws the first being general laws, which includes
Constitutional Law, Indian Penal Code, Indian Contract Law and many more. The second being
personal laws, which includes Muslim Law, Hindu Law and many more. The general law applies
to whole Indian territory, on the other hand personal applies to person of that particular religion.
Personal laws are mostly those laws that are not covered within the area of the general laws.
Hindu is a religion of India and hence we have Hindu law as the personal law.

Origin of Hindu Law

The term ‘Hindu’ is nowhere defined in Dharamsastra and the same has foreign origin. Its
existence is based on the Greek term ‘Indoi’ which was commonly used for Idus Valley Nation.
Later, the nation came be known as Hindustan and its people as Hindus. Initially, Hindus were
governed by the elements of Hindu cultural life.

Meaning of Hindu Law

The term has been defined by Sir Dinash F. Mulla in his work ‘Principal of Hindu Law’. The
learned author states that wherever the law of India operates personal law, the rights, duties and
obligations of a Hindu is governed by Hindu law that is the traditional law. The very particular
law as stated is subjected to amendment, modification and changes by statute.

From the above explanation, it’s quite clear that Hindu law is basically a personal law and is
applicable to person who is Hindu by religion. Hindu law can also be defined as personal law
that regulates the social structure of Hindus. The law specifically deals with marriage, family
matters, inheritance and other social matters affecting the social structure of this particular

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religion. It must also be noted that Hindu law is not only confined to Hindus but is also
applicable to Jain, Sikh and Buddhist.

According to Mayne, Hindu law is law of Smritis which originated from Sanskrit commentaries
and digest. The same is modified by customs and administered by the courts.

Concept of Dharma

The word ‘Dharma’ is related to Hindu law and it simply means duty. The concept of dharma is
different for different religion. According to Buddhists dharma is universal law and is the
essential part of human life, Jains and Sikhs believe that dharma is victory of the truth.

Hindu law defines dharma as duties which a human is obliged to do in various forms. This may
include sociological duties, legal duties, spiritual duties and this is very much related to concept
of justice.

Sources of Dharma

The concept of Dharma has its source from Hindu epics like Bhagwat Geeta, Ramayana and
Mahabharata. The concept include patience, forgiveness, honesty, cleanliness in mind, body and
soul, reasons, knowledge, truthfulness, self-control and absence of anger. Moksha (salvation) is
the essence of Dharma according to Hinduism.

Nature of Dharma

The Hindu law in particular focuses more on the duties than the rights. The nature of dharma
differs from person to person and the person is obliged to perform Dharma. For instance, we can
say that earlier the king was obliged to uphold law and farmers were obliged to produce food
grains, doctors to cure people, lawyers to fight for justice as in present contemporary world.
Dharma is not only a religious concept but also multifaceted. In the contemporary world, we
have codified laws and everyone is obliged to perform duty.

Who are Hindus?

A person can be called as a Hindu, who is:

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  Hindu by religion in any form.
 Buddhist, Jain or Sikh by religion.
 Born from Hindu parents.
 Not a Muslim, Parsi, Christian or Jew and are not governed under Hindu law.

The term Hindu was expressly defined by the Apex Court in the case of Shastri v. Muldas. In this
case the court held that Satsangi, Arya Samajis and Radhaswami are all Hindus because they
have their origin under Hindu philosophy. Whereas in the case of Perumal v. Ponnuswami the
court held that a person can be called Hindu by conversion but there must be sufficient evidence
of conversion and the intention of the person must be bonafide.

Sources of Hindu law

The classification of sources of Hindu law is basically two- fold:

 Ancient Sources
 Modern Sources

Ancient sources: The same can be further divided into four categories. They are-

 Shurti- It is primary source which simply means what is heard and it includes the words
of God. Shruti is regarded as the most important of all the ancient sources. It is enshrined
in the Vedas and the Upnishads. It helps an individual to attain salvation and incarnation.
 Smritis- It is the text which consists of Shruti which has been remembered and
interpreted by the generations. It could further be classified into prose (Dharma Sutra)
and poetry (Dharamsastras).
 Commentaries and digest- The same has played important role in expanding the concept
of Hindu law by interpreting the Smritis. Single interpretation is referred as a
commentary and different interpretations are known as digestive. The two most important
commentaries are Dayabhaga and Mitakshara.
 Customs- It is the tradition that has been practiced since time immemorial. Customs are
further classified into two:
a) Legal customs- These customs are enforceable or sanctioned by law. There are
two types of legal customs, local and general customs. The former is practiced in
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 local area and is not recognized highly. The later is practiced in large area and is
highly recognized.
b) Conventional customs- These customs are generally conditional. It is related to
incorporation of an agreement.

Essentials of custom

The essentials of custom are well discussed below:

 There must continuous practice.

 A custom must be clear and unambiguous.
 A custom must have time antiquity.
 A custom must observed completely and not partially.
 A custom must not be uncertain or unclear.
 A custom must be in favor of public policy.
 A custom should not affect the general interest of public.

In the case of Deivanai Achi v. Chidambaram, the court held that customs is legally enforceable
and binding only if it is practiced continuously. The custom must be clear, certain and
unambiguous. It must be observed completely and not partially. In another case of Laxmi v.
Bhagwantbuva, the court clearly pointed out that custom must be accepted by majority to be
legally enforceable.

Modern sources: The same can be further divided into three categories. They are-

 Judicial decisions- It is the most important modern element of Hindu law. Judicial
decisions are binding and obligatory in nature. Precedent is an established doctrine and is
applicable to the cases with same facts.
 Justice, equity and good conscience- It is the basic rule of law. The concept applies to
those cases for which there are no existing rules. The same was held by the Apex Court in
the case of Gurunath v. Kamlabai.

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  Legislation- It is the most important modern source of Hindu law. Legislation is the pillar
to modern Hindu law. It was need of the hour to codify personal laws to meet the
changing conditions of the society.

Conclusion

Though Hindu law deals with the wider aspect of Hindus, it has been criticized for being
orthodox. There exist several areas where the law needs to be upgraded. The time demands the
very definition of a Hindu as it is not defined in any sources of the Hindu law. The Hindu law
should be codified in such a manner that, no room for ambiguities exist.

References

Cases

1) Shastri v. Muldas, AIR 1966 SC 1119

2) Perumal v. Ponnuswami, AIR 1971 SC 2352
3) Deivanai Achi v. Chidambaram, 1954 Mad. 65
4) Laxmi v. Bhagwantbuva, AIR 2013 SC 1204
5) Gurunath v. Kamlabai, (1951) 1 SCR 1135

Websites

1) https://blog.ipleaders.in/introduction-to-hindu-law-in-india/
2) https://indianlawwatch.com/wp-content/uploads/2015/09/1._Who_are_Hindus1.pdf
3) https://www.lawnn.com/sources-of-hindu-law/
4) http://www.legalservicesindia.com/article/329/Sources-of-Hindu-Law.html
5) https://blog.ipleaders.in/hindu-law-notes/